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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Monday, October 27, 2014

The Federal Court System Seeks to Cut the Length of Briefs.

Here's a communication about proposed changes in the Federal Rules of Appellate Procedure. Their main effect would be to cut the length of briefs. There is a public comment period; how to comment yourself is in the printout.
So long as appellate courts have discretion to allow longer briefs for truly extraordinary cases, shorter default lengths would seem to make the system more efficient.

Thursday, October 16, 2014

Appellate Court Personal Jurisdiction

Usually, as to Texas state class C misdemeanors or municipal ordinance violations, personal jurisdiction in a trial court is obtained over a person by service of a summons, though in rare cases, it can be gained by the arrest of the defendant.
In higher level Texas crimes, personal jurisdiction is normally  invoked by the arrest of the defendant.
In civil matters, normally, one or more plaintiffs give notice to one or more defendants by service of citation and the petition or complaint is served with the citationExcept for special appearances-- procedurally tricky filings which allege that a court does not have jurisdiction over a matter-- even an unserved party can subject itself to jurisdiction by merely filing a document in the court's file.
In justice of the peace courts, a timely request with a bond or a pauper's oath will get one a de novo trial in a higher court. The same is true of municipal courts that are not courts of record-- that is, ones that do not keep track of things by a court reporter or recorder. Appeals from municipal courts of record are not de novo, the higher courts to them, sit as courts of errors like courts of appeals. Motions for new trial and bonds are required also.
In higher courts, an unhappy trial litigant files a notice of appeal in the trial court before the deadline, a timely appeal generally invokes the jurisdiction of a court of appeals. In civil litigation, it is not uncommon for some parties to want to appeal and others not to. Sometimes some trial litigants can hold on to trial rulings they like by not appealing, though other times any single appeal can invoke jurisdiction as against the other parties. Notices of appeal, petitions for discretionary review, and applications for writ of certiorari must generally be timely, otherwise they do not impose appellate jurisdiction. The main exception to this being that the Court of Criminal Appeals may authorize an out-of-time appeal by a writ of habeas corpus (See the post before this one.)
Extraordinary writs, which I have talked about earlier, may give a basis for a higher trial court or appellate court to invoke the jurisdiction of such a court without having started in a lower court.

Monday, October 13, 2014

Illiterate Defendant's Ineffective Assistance of Counsel Held No Excuse for Habeas Application Almost 20 Years after Conviction

Alberto Giron Perez was convicted of murder. He received a 88-year sentence in 1991. He had appointed counsel on appeal-- it is not clear whether his appellate counsel was the same as his trial counsel-- and Perez lost his appeal October 9, 1992. His appointed lawyer failed to notify Perez of his loss at the Court of Appeals until 1993. Perez had a right to appointed counsel on appeal to the Court of Appeals, but did not have a right to appointed counsel to apply to get discretionary review from the Texas's Court of Criminal Appeals. From the time that the appeals court finally decides a case, the loser in that court only has 30 days to file a petition for discretionary review, and, ordinarily, an indigent has to file it without the help of counsel. More than 30 days had passed when Perez first learned that he had lost his appeal-- he only found out in 1993-- so he was barred from asking the CCA to consider his case on direct appeal. When Perez found out about his loss and that his lawyer's action barred him from direct appeal, he sued that lawyer civilly and filed a grievance. However, Perez did not file an application for a writ for habeas corpus until September 2011. Applicants like Perez are subject to Texas Code of Criminal Procedure article 11.07. It has no deadline by which an initial application must be made. The district attorney in the case complained that Perez's delay in applying for his writ made the case not capable of being retried if Perez prevailed. Judge Elsa Alcala wrote for all the members of the court save dissenting Judge Laurence E. Meyers .The court held that Perez knew or should have known that he had a meritorious writ application in 1993, and that the delay between 1993 and 2011 was his fault so that the equitable doctrine of laches applied to his application. In equity, if someone asks for relief from a court, but delays asking for that relief so that the person asking for relief gains a marginal advantage over that person's adversary, that is not fair to the adversary and relief should be denied on that basis. This result obtains even if the relief is sought within a statute of limitations. 11.07 gives no deadline for a first application for habeas corpus.
Judge Meyers's dissent argued that the court's opinion contravened the will of the legislature since the Lege could have easily put in:

  1.  a deadline or
  2. an acknowledgement that laches applied
to 11.07 writ applications, but it did not. He noted that Perez was illiterate, and that Perez was in this mess because of his appellate counsel's ineffective assistance of him, which was not Perez's fault.
I hate it when people are denied appellate relief other than on the merits.  See Tex. R. Civ. P. 1. But Perez or his family members were almost certainly told by the initial appellate lawyer or the lawyer who did the civil suit that Perez should apply for habeas corpus relief, and, generally, the sooner the better. Really, more than 19 years is too long to wait.
The thinking in this case might lay the groundwork for how Texas courts deal with Jerry Hartsfield, the defendant whose 1983 reversal of his conviction was never implemented. His efficacious federal writ application was filed Oct. 22, 2007. His facts are different, though. He filed a number of pro se motions for relief earlier and didn't have counsel to help him until shortly after he filed his federal writ. Hartsfield's claims of post-conviction ignorance are much more reasonable than Perez's. The law in his case is different, too. Hartsfield got the death penalty at the trial court, so his post-conviction rules are different.
Hat tip for this case to the estimable Jim Skelton.
Ex parte Perez, No. AP-76,800 (Tex. Ct. Crim. App. Oct. 8, 2014 available at ww.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=35d3f487-d044-4f01-9b49-c473fa02ef2b&coa=coscca&DT=OPINION&MediaID=55f5c7f0-26f3-4adb-b5d0-1b93e38aff4e)